A true resignation is a voluntary action. Plain and simple.
Although there may be an intention to leave, courts will not construe that intention as a “resignation” unless it is acted upon and is unmistakable.
Another recent example is found in an Ontario case called Carmichael and Mantis Racing Inc, which can be read in full here.
Stan Carmichael and Ernie Jakubowski were friends with a common interest – both were Porsche aficionados. When Carmichael found himself without work, Jakubowski, the owner of Mantis Racing Inc., a high-end automotive shop involved in racing events throughout North-America, saw the potential to grow his business.
Over beers and a handshake, the two friends agreed that Carmichael would become Mantis’ new general manager. However, their relationship would soon sour, resulting in a lawsuit for wrongful dismissal and an allegation that Carmichael resigned.
Carmichael won the case. The Judge was not impressed with Mantis, its lawyer, or its defence.
Often, employees find themselves in the “twilight zone,” somewhere between wanting to leave and having been fired. For employees that want to avoid being characterized as resigning, they should follow these guidelines:
- Resist taking any steps that can be construed as voluntarily withdrawing from the workplace, as difficult as that may be.
- Immediately protest a characterization that there has been a resignation, if it wasn’t the intended result.
- If unclear, request that your options be outlined in writing and seek specialized advice before taking any action.
– Daniel A. Lublin is a partner with the the employment law firm Whitten & Lublin LLP. Reach him at email@example.com.